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Toxic Torts Update: Ontario’s Class Action Law under Review

Since the 1970s, CELA has called for class action reform to enable individuals to bring civil claims on behalf of large groups of people whose health or property has been adversely affected by polluting activities.

Other stakeholders, academics and entities – including the former Ontario Law Reform Commission – also advocated the need to enhance access to justice, ensure judicial efficiency and deter harmful conduct by establishing an effective class action regime.

To advance these objectives, a number of jurisdictions in Canada and the United States have adopted various laws, rules or procedures intended to facilitate class actions, particularly in relation to mass tort claims.

In 1989, for example, Ontario decided to develop a new class action regime, and CELA was appointed as a member of the Attorney General’s Advisory Committee on Class Action Reform. The Committee’s 1990 report recommended the passage of provincial legislation to govern class actions, and a model bill was included in the report.

In 1992, the Ontario government accepted this advice by passing the Class Proceedings Act (CPA). This law allows a representative plaintiff to request the Superior Court of Justice to “certify” that the claim, brought on behalf of a specified group of persons, can proceed as a class action against the defendant(s).

The CPA also contains provisions relating to the certification test, public notice, opt-out procedure, discovery, statistical evidence, settlement, judgment distribution, fee agreements and costs in the class action context.

In light of these key statutory reforms, CELA anticipated that the CPA would be increasingly used by plaintiffs to bring environmental claims regarding widespread harm, loss or damage attributable to acts and omissions by individuals, companies, regulators or other parties. As noted in a Quebec class action case

The class action recourse seems to me a particularly useful remedy in appropriate cases of environmental damage. Air or water pollution rarely affects just one individual or one piece of property. They often cause harm to many individuals over a large geographic area.

On the CPA’s 20th anniversary, CELA prepared a paper  that surveyed the judicial track record for environmental class actions in Ontario. However, this 2012 analysis found that only a relatively small handful of environmental class actions had been successful in obtaining certification under the CPA (sometimes on consent, as occurred in the Walkerton drinking water tragedy in 2000).

Conversely, certification was denied by the courts for various reasons in a number of other environmental cases, such as the Supreme Court of Canada judgment in Hollick v. Toronto, where a representative plaintiff had attempted to bring a class action in relation to off-site impacts caused by a municipal landfill.

Over the same 20 year period, only one environmental class action in Ontario (Smith v. Inco, which involved aerial deposition of nickel particles upon residential properties near a refinery) managed to get to trial on common issues. However, this action was ultimately unsuccessful on the merits, and the defendant was awarded $1.7 million in costs for the 45 day trial.

Significantly, on the 25th anniversary of the CPA, the Law Commission of Ontario (LCO) has recently announced that it is commencing an independent, comprehensive and evidence-based review of the legislation to determine “whether class actions are fulfilling their three-part promise to improve access to justice, foster judicial efficiency and promote behavior modification.” This project will include opportunities for public consultation, and will result in the release of a report in the fall of 2018.

CELA welcomes this timely and important review of the CPA, and we look forward to participating in the LCO’s project. Among other things, CELA will be pushing for cost reforms and certification revisions in order to address the economic and legal barriers that have arisen under the CPA in environmental cases.

In our view, if appropriate amendments are made to the CPA, then the legislation can live up to its full potential by enabling aggrieved persons to obtain judicial redress in toxic tort actions, climate change litigation, or other large-scale environmental claims involving common issues of fact or law.